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Comment by atoav | Hacker News Reader

If politicians break constitutional and/or human rights who else than jurists should step in? That is literally their job.

Of course I'd prefer if governments would respect and uphold these laws in the first place, but if they don't having a justice system that can step in is precisely what we have the division of powers for.

(In Germany, the rights of future generations are written into the constitution — the question was only if the government does enough to uphold these rights)

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> That is literally their job.

It is literally not their job. Their job is to interpret and enforce the laws passed by the body answerable to the people through elections. At least in the US, there is only a very limited federal common law, and there is no common law precedent for generically prohibiting intergenerational environmental impacts. There are those who argue the "public trust doctrine" should drive these outcomes, but again, no such doctrine has ever been applied to carbon emissions in the US (or even any other form of pollution). That would be judicial lawmaking. The idea that unelected black robes can fundamentally remake the US economy without legislative authorization is literally the antithesis of how it's supposed to work. That's not their job.

My gut feeling is 'wrong'. Justice is concerned with concepts of right and wrong. Politics is concerned with concepts of power and, possibly, public opinion. Lawmaking is concerned with whoever can pay off the politicians most effectively :D

If judges are not at least equally capable of throwing their weight around as politicians and kings and the like, why even have them? They are meant to not ANSWER to kings, Presidents, and legislative authorization. Are they supposed to rule, instead? No, which is why legislation is sometimes a countervailing force. But they sure are not there to act as puppets to the powerful and the politicians.

Please trust you are fundamentally wrong. If Congress plainly acts within the authority granted it by the constitution, then the judiciary is strictly bound. Similarly, the judiciary is strictly bound by the constitution. If there is no statutory or constitutional authority, then there is no law to apply, meaning the petitioner has not carried its burden before the court.

Would that this was true. That would be an originalist reading. The modern activist SCOTUS is able to find "emanations and penumbras" in the Constitution of which the founders never dreamed. [0]

[0] https://en.wikipedia.org/wiki/Griswold_v._Connecticut

It is, perhaps, worth noting that the "penumbra" you're describing is the right to privacy, which was never enumerated anywhere in the Constitution.

Yes, that decision is so controversial precisely because it's one of the rare instances of the court divining constitutional entitlements that did not previously exist. It is in many ways the exception that proves the rule.

We don't need judges to be politicians, because we have politicians. We don't need them to be kings - we got rid of kings for very good reasons.

We need judges to be the referees, not just another set of players in the game.

To compare judges to kings in this case is so absurd as to barely be worth refuting. The court is working within within a legal framework, not wielding supreme executive power granted by divine right and inherited through a dynasty.

But in the post I replied to, Applejinx made exactly that comparison. So don't blame me...

They wield supreme judicial power. The legislative body can then try pass laws to more precisely define the activities involved.

The judiciary can then declare those new laws to be unconstitutional.

That is an active judiciary. It is be deplored. The judiciary in the US is supposed to be the weakest branch of three. The EU is an example of what happens when it's the strongest.

The ultimate backstop to this is constitutional amendments (in the cases where the issue is actually Constitutional... In the case of, for example, Oracle v Google, the courts declared APIs were copyrightable as a matter of law, which could be altered by legislation).

Many Judges in the USA are elected... 39 out of 50 states elect some of their judges.

Judges interpret and use the law. Yet if you have a constitutional law that says every citizen has to treated with dignity this might mean something entirely different in the year 1800 than it does in 1950, 1990 or 2021. It might include/exclude different people, it might have practically no impact or a lot of impact etc.

Justices can interpret laws in a way that makes sense for the time and surrounding they live in. And they have to do it as long as the law is not 100% clearly written (which it isn't usually)

Despite the PR, judges, in every government, are effectively lawmakers. Their involvement in the legislative process is less direct than legislators, but undeniably their power, and purpose, is to revise laws.

Not sure how you had the idea any of this was about the US? In one of the mentioned examples (Germany) the constitution says that the government has to protect also the rights of the future generations. If any government breaks the constitution (also in the US afaik) constitutional/supreme courts can decide to take on a case brought forward by people affected by this.

I am not an US citizen but your constitution is valid in all of the US isn't it? And if a government breaks one of your constitutional rights you can sue the government in a court of law? Same principle.

European constitutions have a lot of bad stuff in them that's not thought out at all, especially around human rights. The US constitution limits itself to a very small number of matters that are (relatively) well defined, exactly to stop this kind of law making by judges. If it allows court rulings like this one then, the German constitution is not as well thought out, for the reasons well outlined above.

They added the reference to Germany’s constitution after I commented.

There are different laws for different audiences. Many laws - such as constitutions - have the express purpose of restricting lawmakers. I believe that is widely considered one if the core advances of modern democracies in contrast to monarchies.

The details surely differ, but the general principle applies to the US as well as Germany.

Electors.

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